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From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Monday, 19 May 2014

At last! Following a few copyright-free weeks at
the Court of Justice of the European Union (CJEU), some relief is finally coming
to an EU copyright enthusiast near you on Thursday, when Advocate General (AG) Cruz
Villalon issues his Opinion in Case C-201/13 Deckmyn, and the CJEU hears Case C-419/13 Art&Allposters.

The latter [here and here] is a very important [if
not one of the most important recent references, so important that this Kat has
already ordered her customised T-shirt 'I heart Art&Allposters’] reference
for a preliminary ruling from The Netherlands, seeking clarification as to the exhaustion of the right of distribution and transformative uses under EU
law.

The former is a reference from Belgium which is
also particularly timely, in that it concerns the notion of 'parody' under
Article 5(3)(k) of the InfoSoc
Directive. There is probably no need to recall what happened to the
delay to the approval of the proposed parody, caricature and pastiche exception[here] in
the UK [see however here, here and here].

The original work in Deckmyn ...

As explained by EU Law Radar and reported by this blog, the background
national proceedings in Deckmyn are all about whether the right holders to the well-knownSpike
and Suzy[Suske
and Wiske] albums can stop
a political party from circulating a picture that spoofs the cover of one of
the books, while also reproducing several elements, including the
title, the Spike and Suzy characters, and the use of the orange colour
which was so typical for the covers to the Spike and Suzy stories.

Article 5(3)(k) allows Member
States to provide for an exception or limitation [surprisingly
enough, they are not the same thing, as the CJEU explained at paras 33 to 35 of
its VG Wort decision] to
the rights provided for in Articles 2 [reproduction right]and 3 [right
of communication/making available to the public] for
the purpose of caricature, parody or pastiche.

These are the questions that the
Brussels Court of Appeal referred to the CJEU:

1. Is the
concept of 'parody' an independent concept in European Union law?

2. If so, must a
parody satisfy the following conditions or conform to the following
characteristics:

- the display of
an original character of its own (originality);

... and its "parody"

- and such that
the parody cannot reasonably be ascribed to the author of the original work;

- be designed to
provoke humour or to mock, regardless of whether any criticism thereby
expressed applies to the original work or to something or someone else;

- mention the
source of the parodied work?

3. Must a work
satisfy any other conditions or conform to other characteristics in order to be
capable of being labelled as a parody?

And here’s the AdvoKat General’s
Opinion.

1.An independent concept of EU law? You
bet!

As regards the first question, this Kat
is inclined to respond in the affirmative. This is because - as the CJEU
explained on a number of occasions [as
recent copyright-related examples, see eg the decisions in VG Wort , TV2 Danmark, and Padawan]-
"the need for a uniform application of European Union law and the
principle of equality require that the terms of a provision of European Union
law which makes no express reference to the law of the Member States for
the purpose of determining its meaning and scope [as
is the case here] must normally be given an independent
and uniform interpretation throughout the European Union; that interpretation
must take into account the context of the provision and the objective of the
relevant legislation".

2.What’s in a parody? A bit of originality, but other things may be specific to satire or pastiche

O! be some other parody: What's in a parody?

By its second question, the Belgian
court basically wishes to know whether a parody must be copyright-protectable per
se. In fact, as the CJEU stated in Case C-393/09 BSA[here and here], "copyright within the meaning
of Directive 2001/29[ie
the InfoSoc Directive]is
liable to apply only in relation to a subject-matter which is original in the
sense that it is its author’s own intellectual creation".

This Kat does not see this requirement
in the Directive, yet if a parody lacked any originality, ie if
it was not its author (the parodist)'s own intellectual creation, it would
probably be just a verbatim reproduction of an earlier work. As such, would it qualify as a parody? Unlikely.

As to whether 'lack of confusion' is
also required, this is a concept that is not really part of copyright law.
However, the AG might be inclined to differentiate between 'parody' and
'pastiche', this being an artistic work in a style that
imitates that of another work, artist, or period.

This said, does the parody have to
target the earlier work or can it also refer to something/someone else? Also
here, another distinction might come into consideration, this being the
distinction between 'parody' and 'satire'. As the US Supreme Court explained in
its seminal 1993 decision in Campbell, "Parody
needs to mimic an original to make its point, and so has some claim to use
the creation of its victim's (or collective victims') imagination, whereas
satire can stand on its own two feet and so requires justification for the very
act of borrowing". Yet, as explained in the
enlightening and invariably engagingPatry on Fair Use, it is unlikely that the
Court intended such a sharp distinction and that, instead, Justice Souter was
just making a small, illustrative point.

If acknowledgment was a requirement, how many would comply?

However, unlike US fair use doctrine, the
InfoSoc Directive makes an express distinction between parody and satire. Whether such a
distinction is or ought be meaningful is another matter, of course ...

Finally: must the parody mention the
source of the original work? Well, not even the UK would
require that :-)

And, indeed, in Article 5(3)(k) - unlike say Article 3(a) - there
is no mention of any duty to acknowledge the author of the
original work. So this Kat would respond in the negative here.

3.Any other requirements? Being funny is
not in the job description

By its third question, the Belgian
court is asking whether a parody must meet any other requirements. This Kat is
inclined to stress that a parody must not be necessarily funny [as may appear instead implied by the
referring court when it says that a parody is "designed to provoke humour
or to mock"], as humour may come in all shapes and
sizes, including wry and cheap/trashy humour.

While waiting for Thursday’s original
Advocate General’s Opinion, how would readers respond to the questions referred by the Belgian court?

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